Judgment No. SC 11/09

Civil Appeal No. 18/07

CAPS UNITED FOOTBALL CLUB (PRIVATE) LIMITED v

(1) CAPS HOLDINGS LIMITED (2) BUYMORE FOOTBALL CLUB (3) THE ZIMBABWE FOOTBALL ASSOCIATION

(4) THE PREMIER SOCCER LEAGUE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA & GWAUNZA JA

HARARE, JUNE 12, 2007 & FEBRUARY 18, 2009

T Biti, for the appellant

F Mutamangira, with him I Ndudzo, for the respondents

SANDURA JA: This is an appeal against a judgment of the High Court which dismissed an urgent Chamber application filed by the appellant.

The background facts in the matter may be tabulated conveniently as follows –

1. In 1973 Caps Holdings Limited (“Caps Holdings”) established a football team called Caps Rovers Football Club, which was subsequently named Caps United Football Club.

2. On 2 December 1999 the appellant company, Caps United Football Club (Pvt) Ltd, was incorporated on the instructions of Caps Holdings.

3. On 28 December 1999 Caps Holdings, represented by Edwin Robinson, and Twin Con Industrial Air (Pvt) Ltd (“Twin-Con”), represented by Twine Phiri, concluded a joint venture agreement which, in relevant part, reads as follows:

“WHEREAS:

1. Caps and Twin-Con have entered into an agreement to embark on a sports joint venture on a 50/50 basis.

2. The joint venture company shall take over the running of Caps United Football Club and also embark on any other sports related activities.

Now therefore in consideration of both parties agreeing on a joint venture Caps and Twin-Con agree as follows:-

1. Twin-Con shall pay a sum equivalent to 50% of the estimated franchise value of Caps United Football Club within 14 days of signing the agreement. 50% of the franchise value is set at $900 000.00.

2. Upon receipt of the Twin-Con franchise contribution by Caps the process of registering the joint venture Company will be initiated, on an equal shareholding by the two parties. …

3. The current Caps United Football Club Executive is mandated to set up the new company in full compliance with the Companies Act in consultation with both Caps and Twin-Con.

4. Upon registration of the new company Caps shall transfer ownership of the Caps United Football Club franchise to the new company including the players and other Caps United Football Club related assets.

5. The new constituted Board of Directors shall be mandated to run the affairs of Caps United Football Club in accordance with the Companies Act and general rules governing soccer in Zimbabwe.

6.-7. …

8. The name of the football team shall be maintained as Caps United Football Club until such time as the board of the new company revisits it.”

4. In December 2002 Caps Holdings sold its 50% stake in the franchise of Caps United Football Club to Twin-Con. However, according to Twin-Con, what it purchased was not just 50% of the franchise of Caps United Football Club but also 50% of the shares in Caps United Football Club (Pvt) Ltd.

5. In August 2006 Caps Holdings acquired the second respondent, Buymore Football Club, and immediately issued a press statement advising the football fraternity about that acquisition, and that with effect from 1 January 2007 Buymore Football Club would be known as Caps Football Club.

6. The press statement issued by Caps Holdings prompted Twine Phiri, who purported to be the chairman of Caps United Football Club (Pvt) Ltd, to file a court application in the High Court (Case No. HC 7486/06), in the name of Caps United Football Club (Pvt) Ltd, on 1 December 2006 against Caps Holdings and Buymore Football Club, seeking the following order –

“1. (That the) first respondent, Caps Holdings Limited, be and is hereby barred and interdicted from unlawfully interfering with the goodwill, brand, colours, regalia and insignia of Caps United Football Club and Caps United Football Club (Pvt) Ltd.

2. That the respondents be and are hereby barred from renaming Buymore Football Club, Caps Football Club, Caps Rovers or any other name suffixed or prefixed with the acronym Caps.

3. (That) Caps Holdings (Private) Limited (sic) be and is hereby interdicted from the use of the colours green and white, together with the acronym CAPS in respect of any football team that it may own or sponsor and register to play with the Premier Soccer League and or with the Zimbabwe Football Association in any division.

4. That (the) respondents jointly and severally pay the other to be absolved pay costs of suit sic).”

The court application was opposed by the respondents.

7. About six-and-a-half weeks after filing the court application, Caps United Football Club (Pvt) Ltd filed an urgent Chamber application in the High Court (Case No. HC 241/07) on 16 January 2007 against Caps Holdings, Buymore Football Club, the Zimbabwe Football Association and the National Premier Soccer League, seeking the following order:

“1. That pending complete resolution by the courts of case number 7486/06, the first and second respondents be and are hereby barred from using the name CAPS Football Club and renaming Buymore Football Club by any other name that has the acronym CAPS in it.

2. (That) pending the resolution of case number 7486/06 the second respondent, Buymore Football Club, and indeed (the) first respondent, be and is (sic) hereby barred and interdicted from unlawfully and interfering (sic) with the goodwill, brand, colours, regalia and insignia of CAPS United Football Club and CAPS United Football Club (Pvt) Ltd.

3. (That the) first and second respondent (sic), jointly and severally, each paying the other to be absolved, pay costs of suit calculated on a scale as between attorney and client.”

8. The urgent Chamber application was heard on 19 and 22 January 2007, and on 24 January 2007 the learned Judge in the court a quo held that the matter was not urgent, and that in any event there were disputes of facts which could not be resolved on the papers.

Aggrieved by that decision, Caps United Football Club (Pvt) Ltd appealed to this Court.

There are two main issues for determination in this appeal. The first is whether the learned Judge in the court a quo correctly concluded that the matter was not urgent; and the second is whether there were disputes of fact which could not be resolved on the papers without doing any injustice to the parties.

Dealing with the issue of urgency, the learned Judge in the court a quo said the following at pp 8-9 of the cyclostyled judgment (judgment no. HC 214/07):

“It is my considered opinion that this matter is not urgent. It is not in dispute that the 2007 soccer season will commence at the beginning of February 2007. I am made to understand that the case HC 7486/06 will not have been heard before the soccer season starts. I am, however, made to understand that only heads of argument by both parties are yet to be filed before the matter can be set down for hearing as an opposed matter. … I am advised further that the fixtures list has not yet been released by the fourth respondent. It was therefore unknown when exactly the two teams were going to meet in competitive football in the league. … The fact that the soccer season will start in early February 2007 does not mean that the two teams will meet in February 2007. The date on which the two teams will meet remains unknown until the fixtures list is released. As long as the above position is correct, this application cannot be considered urgent. The date on which the two teams would meet is important in considering whether or not the matter is urgent because, as I was made to understand by the parties, ugly scenes in the terraces in the stadium would only occur if the two teams meet each other. I was made to understand that it was at such meetings that fans of the two teams would fight for the name of their team and for their colours, etc …”.

In my view, the learned Judge’s reasoning cannot be faulted. The matter was obviously not urgent. The parties should have simply filed their heads of argument in the main court application (i.e. case no. HC 7486/06) and proceeded to have it set down for hearing.

Having concluded that the matter was not urgent, the learned Judge went on to deal with the issue as to whether the matter could be resolved on the papers, although it was not necessary for him to do so. On that issue the learned Judge said the following on p 6 of the cyclostyled judgment:

“It is my considered opinion that there are a lot of material disputes of fact in this matter which make it impossible for this court to grant any relief. How can this court grant the applicant the relief it sought when the authority of Mr Twine Phiri to represent (the) applicant is being questioned? There is a serious dispute on who is the applicant and who owns it. If Mr Phiri is not the major or simple shareholder in (the) applicant, this whole application collapses. It means he cannot depose to a founding affidavit in (the) applicant’s cause.”

Once again, in my view, the learned Judge’s reasoning cannot be faulted.

In the circumstances, the appeal is devoid of merit and is, therefore, dismissed with costs.

CHEDA JA: I agree

GWAUNZA JA: I agree

Honey & Blanckenberg, appellant's legal practitioners

Mutamangira, Maja & Associates, respondents' legal practitioners